Professional Documents
Culture Documents
I. INTRODUCTION
HFS further ask this Court to enjoin the Attorney General from
and order her not to bring any actions, in any court, against DIA
or HFS for violations of the ADA at any newly constructed Days
this district, and this Court should dismiss this action under
II. BACKGROUND
A. Factual Background
Standards for which each party was jointly and severally liable
counsel for DIA and HFS, with copies to every other party,
DIA, and the other parties responsible for eleven hotels for
December 18, 1995 to counsel for DIA. The Fort Stockton Days Inn
was not included in the group of eleven hotels that the Attorney
the contrary, the owner and architect for that hotel were among
through the end of January 1996 (until DIA and HFS filed this
for DIA and HFS tendered their last, best offer at a meeting with
HFS on February 5th to reject that offer, counsel for DIA and HFS
informed the Department that DIA and HFS had, while the
against DIA, HFS, and the owners, architects, and contractors for
five Days Inn hotels. See Exhibits D-H. These actions are
currently pending in the United States District Courts for the
Attorney General alleges that DIA and HFS had a significant role
not yet been addressed by any court, but the language clearly
III. ARGUMENT
Wilton v. Seven Falls Co., ___ U.S. ___; 115 S.Ct. 2137, 2140
463 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 2164
876 F.2d 26, 28-29 (5th Cir. 1989); (2) because declaratory
(5th Cir. 1966), cert. denied, 386 U.S. 996 (1967); and (3)
race to the court house." Perez v. Ledesma, 401 U.S. 82, 119
(1972). See also Torch v. LeBlanc, 947 F.2d 193, 195-196 (5th
Cir. 1991).
Given that DIA and HFS well knew that the Department of
CAPT. W.D. CARGILL, 751 F.2d 801 (5th Cir. 1985), cert. denied,
Fashions Corp., 706 F.2d 599 (5th Cir. 1983), the Fifth Circuit
shopping was an element in this case" in the fact that the law in
the two courts differed, making one forum more favorable to one
There are strong indications that DIA and HFS brought this
General, and that they are forum shopping. First, through the
Department made clear to DIA and HFS that if these matters could
enforce the law, and gave DIA and HFS more than 30 days notice of
properly be dismissed).
Second, there are clear indications that DIA and HFS believe
that the law is more favorable to them in the Fifth Circuit, so
Cir.), cert. denied, ____ U.S. ____, 116 S.Ct. 704 (1995), in
built before the ADA became law. Among other things, section 302
Judge Garza reasoned that ADQ had insufficient control over the
restaurant. As a result, the Court held, ADQ did not fall within
The Department's cases against DIA and HFS do not concern pre-
the ADA became law, and arise under section 303, which does not
the fact that while their role in the design and construction of
Days Inn hotels. DIA and HFS thus seek declaratory relief as to
all newly constructed Days Inn hotels based solely on the facts
here.
The Supreme Court and the Fifth Circuit have both held that
3 To the extent that DIA and HFS now seek, or modify their
claims to seek, a declaration only that they are not liable for
ADA violations at the Fort Stockton Days Inn, such a claim is not
justiciable. See Part III.B., infra, at pp. 16-20.
resolving questions of the scope of a public law, especially on
The Americans with Disabilities Act is a new public law, and the
and HFS argue, however, that the scope of section 303 is limited
to those parties who own, lease (or lease to), or operate places
of the statute).
ADA, and 2) if so, did DIA and HFS have sufficient involvement in
liable for ADA violations? Under either approach, the cases make
clear that DIA and HFS can receive the declaratory relief they
The Fifth Circuit and the Supreme Court have held that the
each case the Department of Justice has alleged that DIA and HFS
question, and that they are liable for the ADA violations at
district court take up these issues. See Mission Ins. Co., 706
disputed issues).
that facility, and may require joining the owner and others as
and HFS sought declaratory relief with respect only to the five
have been visited and inspected by the Department, if not all new
the action," and "all other practical problems that make trial of
F.2d at 602-03, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947).
judgment based upon the claim that the Attorney General has
Chemical Co. v. Morton, Int'l, Inc., 508 U.S. 83; 113 S.Ct. 1967,
1974 (1993); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41
(1937); State of Texas v. West Pub. Co., 882 F.2d 171, 175 (5th
Cir. 1989), cert. denied, 493 U.S. 1058 (1990). "The question in
ADA violations and is not the basis for the Attorney General's
50 F.3d 1318, 1325 (5th Cir. 1995), citing Merchants Fast Motor
Lines, Inc. v. I.C.C., 5 F.3d 911, 919-20 (5th Cir. 1993). The
this district. The Fort Stockton Days Inn is not within the
sue if the matter was not resolved by January 31, 1996. To the
contrary, the owner and architect for that hotel were among the
with those parties, and the owner and architect of the Fort
IV. CONCLUSION
DEVAL L. PATRICK
Assistant Attorney General
RAYMOND A. NOWAK
Texas State Bar No. 15121490
Assistant United States Attorney
JOHN L. WODATCH
Chief, Disability Rights Section
_____________________________
RENEE M. WOHLENHAUS
Special Litigation Counsel
THOMAS M. CONTOIS
ALYSE S. BASS
Attorneys, Civil Rights Division
U.S. Department of Justice
Post Office Box 66738
Washington, D.C. 20035-6738
(202) 514-5527